Deported for Smoking Marijuana? Trump's Taking America Back to the Bad Old Days of the Drug War

There exists a wicked synergy between the war on drugs and the war on immigrants.

ICE raid, San Jose, California, February 2017
Photo Credit: ICE

This May, Immigration and Customs Enforcement (ICE) reported a nearly 40% increase in immigrant arrests in the first 100 days of the Trump administration compared to the same time period in 2016. That included a nearly 20% increase in ICE arrests of immigrants convicted of a criminal offense from 25,786 people in 2016 to 30,473 people this year.

"Criminal aliens" conjures up images of rapists, murderers, gangbangers, and cartel cowboys, but many of those deported for criminal offenses were merely caught possessing drugs. The ICE data made available last week didn't specify what proportion of those deported for criminal offenses were because of drug charges, but a 2014 Transactional Records Access Clearinghouse (TRAC) at Syracuse University report showed that nearly 250,000 — one-quarter of a million — people were deported for nonviolent drug offenses from 2008 to 2014. A nonviolent drug offense was the cause of deportation for more than one in ten (11 % of) people deported in 2013 for any reason — and nearly one in five (19 %) of those who were deported because of a criminal conviction.

TRAC isn't alone in highlighting the high number of people being deported for drug offenses.

Human Rights Watch released a report in 2015 on drug deportations, noting that, "Thousands of families in the United States have been torn apart in recent years by detention and deportation for drug offenses." Last year, the ACLU released a report noting that veterans who have served the country as lawful permanent residents have been "subject to draconian immigration laws that reclassified many minor offenses as deportable crimes, and were effectively banished from this country."

Some 6,600 people were deported for pot possession alone in 2013-2014, and nearly 20,000 people were deported for simple drug possession in 2014. And the Trump administration has made it clear that it intends to use marijuana prohibition to throw people out of the country.

"ICE will continue to use marijuana possession, distribution and convictions as essential elements as they build their deportation removal apprehension packages for targeted operations against illegal aliens living in the United States," Homeland Security Secretary John Kelly announced last month.

Immigration and drug reform advocates are warning that Trump policies will see drug deportations rise dramatically and charge that the administration is exploiting drug war policing and prosecutions to target and deport large numbers of immigrants for drug law violations, even in cases where drug charges are dismissed or possession is lawful under state law.

"The Trump administration is seeking to escalate the failed war on drugs as a means to further criminalize immigrants and people of color," said Jerónimo Saldaña, Policy Manager at Drug Policy Alliance’s Office of National Affairs. "Not only are immigrants more likely to be entangled in the criminal justice system for engaging in the same practice as whites, but the threat of deportations equates to an unconscionable double punishment. This double standard, along with hateful rhetoric that targets 'felons not families,' inflicts serious harm on countless communities."

There is some pushback from the states. The New York State Assembly passed legislation that creates a process for sealing the criminal records of people arrested for simple possession of marijuana in public view, providing a measure of protection for immigrants by making it difficult or impossible for immigration authorities to meet their legal burden of proof for a judge to find a lawful permanent resident deportable.

Similarly, California legislators are considering a bill explicitly designed to shield immigrants from deportation for drug possession charges, as long as they undergo treatment or counseling. Under Assembly Bill 208, sponsored by Assemblywoman Susan Talamantes Eggman (D-Sacramento) people arrested for simple possession would be able to enroll in a drug treatment for six months to a year before formally entering a guilty plea, and if they successfully completed treatment, the courts would wipe the charges from their records.

The bill would address a discrepancy between state law and federal immigration law. Under state drug diversion programs, defendants are required to first plead guilty before opting for treatment. But although successful completion of treatment sees the charges dropped under state law, the charges still stand under federal law, triggering deportation proceedings even if the person has completed treatment and had charges dismissed.

"For those who want to get treatment and get their life right, we should see that with open arms, not see it as a way of deporting somebody," Eggman said.

California, along with seven other states, has already legalized marijuana, removing the possibility of people being charged with pot possession under state law and then deported under federal law. But the California legalization initiative, Proposition 64, also made the reduction or elimination of marijuana-related criminal penalties retroactive,meaning past convictions for marijuana offenses reduced or eliminated can be reclassified on a criminal record for free. Having old marijuana offenses reduced to infractions or dismissed outright can remove that criminal cause for removal from any California immigrant's record.

With the Trump administration apparently fully committed to using marijuana prohibition as a tool in its anti-immigrant campaign, that's all the more reason for immigrant communities to get on board with marijuana legalization. For immigrants—and not just "illegal" immigrants—living in Trump world, changing the drug laws is an act of self-preservation.


Phillip Smith is editor of the AlterNet Drug Reporter and author of the Drug War Chronicle.

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